Breaching privacy in family law proceedings - the Courier-Mail example

Last December I wrote a post about privacy and family law – and in particular the section of the Family Law Act which stipulates that publishing words or images which reveal the identity of those involved in family law proceedings is an offence.

Well last week a case hit the headlines on just this issue.

In May 2012 The Courier-Mail published the names and a number of front page photos of children involved in an international parenting dispute.

 

Following the publishing of those details and photos the Chief Justice of the Family Court made a complaint to the Australian Federal Police who investigated the matter. Ultimately the newspaper was charged with four breaches of the relevant section of the Family Law Act.

 

The newspaper pleaded guilty to breaching the Family Law Act during its coverage of the case.

 

When the matter came before District Court Justice Martin for sentencing he said “It seems to me that the newspaper seized upon what it regarded as a sensational story, which would be attractive to readers, and put the story ahead of its legal obligations.”

 

The District Court heard that journalists were warned on multiple occasions by a Court staffer and a legal officer about the ramifications of identifying the family.

 

Justice Martin said “This was persistent, serious offending in deliberate defiance of the law and importantly in complete disregard of the interest of four children.”

 

Justice Martin fined the paper $30,000 per breach saying that the breaches were in the worst category and that the newspaper had not shown any remorse for its actions. The maximum penalty is $33,000 per breach but Justice Martin took into account the newspaper’s lack of criminal history and its contribution to the community. Justice Martin said he believed that the fine was severe enough to deter “like-minded” publishers.

 

While this is a fairly extreme case it does serve to highlight the seriousness with which the Court takes breaches of privacy.

Conscious uncoupling

If you have seen the entertainment news this week you will likely have heard the term “conscious uncoupling”. Gwyneth Paltrow and Chris Martin have not separated but rather consciously uncoupled.

I’ve seen a few definitions for this concept but essentially it seems to be a recognition that relationships are not supposed to last forever and when a relationship ends both parties should be grateful for what was not bitter about what is no longer.

It would be very easy to dismiss this concept as airy-fairy celebrity nonsense but separation is a reality for many people and anything that can assist people through this tough time is worth considering.

Looking a little deeper into the concept of conscious uncoupling it turns out many of the ideas are no different from the broad concepts embraced by the Australian family law system – including putting the needs of the children first and focusing on a just outcome not a combative outcome.

Many of the tips I discuss with clients regularly seem to be the same or similar to those in conscious uncoupling:

My concepts	Conscious uncoupling
You give what you get. If something is important to you and you don’t want to give it up remember that when there is something that the other party requests.	Be "for" the other person - you both win.
Adapt your frame of mind - you will see valuable lessons that allow you to grow beyond the relationship	Focus on what you've gained, not what you've lost.
Put your kids first. You are still a family. Don't fight in front of your kids or speak negatively about your ex to your kids.	Choose your kids over being right. As Gwyneth Paltrow recently said, you are and always will be a family.
If you can separate well you will live well afterwards.	Never say I won't love again. Maybe you are not ready now, but know that you deserve to find love again.

 

Now these are all easy to say and extremely hard to do - and are more often a work in progress. But maybe the key concept from conscious uncoupling - a relationship can be successful even if it ends in separation – could be some comfort.

International seperation - property around the world

With the ease of international travel – and Australia’s rich migrant past - more and more people live their lives across multiple continents. This can raise important questions when it comes to family law if a couple separate: what if the couple own property in Australia and in other countries, what if the couple were married in another country but divorce in Australia, and what happens to their property in Australia if the couple divorce overseas?

The recent decision by the Full Court of the Family Court in Anderson & McIntosh addressed that last question: what impact does a foreign divorce have on property held in Australia?

In this case the parties were married in Australia in 1988, they had three children, and separated in another country (known as “Country B”) in December 2009. Following separation the wife remained in Country B and the husband returned to Australia.

In May 2010 the parties reached agreement in relation to the division of the property they owned in Country B and in December 2010 a divorce was granted in County B. The property agreement did not cover the assets they owned in Australia.

On 10 July 2012 the wife filed an application for property division in Australia – for the assets held in Australia. The husband filed a response asking that the wife’s application be dismissed on the basis that more than 12 months had elapsed since the divorce had been granted in Country B and she was therefore required to obtain the consent of the Court before she could bring her Application as required by section 44(3) of the Family Law Act.

On 20 March 2013 the Judge dismissed the husband’s response. The husband appealed that decision.

The Full Court of the Family Court was required to consider whether the requirement to file an application for property division within 12 months of the date of divorce without it being necessary to obtain the leave of the Court in accordance with section 44(3) of the Family Law Act 1975 applies where parties have been divorced overseas.  

The Court found that section 44(3) referred to a “divorce order” rather than a “divorce” and throughout the Family Law Act there is a distinction between those terms.

The Court concluded that a foreign divorce is distinguishable – a “divorce” and not a “divorce order”. And therefore there was no requirement for the wife to have sought the Court’s consent to bring her application. The husband’s appeal was dismissed and the wife was able to proceed with her property division application in relation to the assets that the parties held in Australia.

Co-parenting: how to manage a child's technology use between households

Parenting after separation is tough. As parents you are expected to make decisions for your child in circumstances where your own relationship is strained – you may no longer trust each other, or even like each other very much.

But what if we add in technology - more specifically, managing kids’ use of technology?

One of the greatest challenges in today’s modern parenting world is managing technology use by children. The reality is that parents raising children in intact relationships struggle with how to manage technology use. So when you add in the complication of a child spending time in two households does managing use of technology become impossible?

There are frequent media reports about the growing use of technology, especially by children. Indeed last night on ABC News there was an item about what schools can do to encourage children to use technology by students on the previous evening there was an item about teens being addicted to technology.

So what can parents do when your child spends time in two households? When both parents get to make decisions about the use of technology? What can be done to create a consistent approach to the use of technology?

While each child, and family, are different here are some ideas:

1.      Believe it or not, the first is to ‘let go’.

·         One of the hardest things about parenting after separation is coming to the realisation that you cannot control exactly what happens in the other household. Your own standards and rules, however considered they may be, are not necessarily the only standards and rules. It’s vital to find a way to be objective and not judgemental.

·         You should avoid conversations with the child about why there are rules in your house and different rules in the other house. It can be almost impossible to remain objective during such conversations. If necessary perhaps talk instead about how each parent cares for the child and the importance of respecting the rules in each household.

2.      The next idea needs to come after the first idea. That is to try and talk with each other, calmly, about your concerns regarding the use of technology.

·         You may even have such conversation with the assistance of the child’s school or a counsellor.

·         You should focus on having a constructive conversation. Use recent examples of how using technology, especially for extended periods, affectionate child. For example, that when the child comes back to you after having spent time using technology the child is revved up and experiences difficulty to calm down. The aim of the conversation is not necessarily to decrease, or even limit, the amount of time the child uses technology in the other household but to instead work together to ensure that if the child does need to use the technology at that particular time in the other house that suitable arrangements can be put in place in your house for the child to then have some quiet time - or to explain why that cannot occur (such as appointments) and therefore asking that the technology time in the other house be moved to a more suitable time.

3.      The final one is also a tough one - it is to be consistent in the rules that are in place in your own home.

·         This helps the child to question the activity themselves no matter what rules there are in each home - and ultimately perhaps to self regulate. Of course this is tough at the best of times but even tougher when children complain about having more time with technology in the other house and are therefore upset with you for having restrictions.

·         I regularly hear from child experts that children are remarkably adaptable - often more adaptable than adults - and hopefully with support and patience your child will adjust to different rules between houses even when inconsistencies exist.

Technology used by children is here to stay. And with more and more couples separating, co-parenting after separation will be a skill that more and more of us need.

The more willing and able separated parents are to address difficult parenting issues together the easier it will be for the child.

Debt

When considering a division of property following the breakdown of a relationship or marriage we look at the assets and liabilities of the parties before deciding on a just and equitable division between them.

And an Order by a family law Court can stipulate how debts of the parties are to be treated.

But there is a vital question that has to be asked when dealing with liabilities – whose name is the debt in?

The answer to that question can have a significant impact on how Orders are drafted and their effectiveness in the long run.

For example:

Problem Orders

• the Wife is ordered to pay the credit card debt of the parties
• that credit card is actually in the name of the husband
• the wife fails to pay the debt
• the bank pursues the husband for monies owed in accordance with the terms of the credit card application.
• the husband has to pay the credit card debt despite what the family law Court orders say.

Well drafted Orders

• the parties are ordered to refinance the credit card debt currently in the name of the husband into the wife’s sole name
• the wife is then solely liable for repayment of that credit card debt now in her name
• should the wife be unable to finance the credit card debt currently in the name of the husband into her sole name within 28 days then “ABC asset” (e.g motor vehicle) is to be sold within 28 days and the proceeds divided so as to pay out the credit card debt (including extra interest) in the name of the husband and the balance to then be paid to the wife
• pending compliance neither party is allowed to increase the credit card liability.

It is important that parties consider the long term effect of Orders - and think of problems that can arise in the future - just because you are getting along now, or something seems simpler now, does not mean that  there won't be problems later on. If the Orders are properly drafted there will be sufficient protection for both parties.